June 28, 2008

As regular readers know, I have long been suggesting that a broad ruling in the Heller Second Amendment case could and should impact the broad federal prohibition on felons possessing guns (see old posts here and here and here and here). I am now very pleased to learn, based on this new article in the New York Sun, that former Solicitor General Ted Olson seems to agree with my legal analysis.

The NY Sun article, headlined "Supreme Court Decision May Permit Felons To Own Guns," is the first major artilce I have seen covering this important angle on post-Heller legal realities. Here are excerpts from an effective article:

[L]ittle attention has been paid to the effect that the court's decision could have on regulations defining which groups of people can be excluded from gun ownership. "The Court might decide there are some classes of felons that ought to be treated differently from other classes of felons," a former solicitor general, Theodore Olson, said in an interview on Thursday about the prospect that the Supreme Court may eventually permit felons to own guns.

Crimes ranging from murder to writing a hot check can count as felonies. The felon-in-possession law applies to people convicted of state crimes as well as federal crimes. At the end of 2001 there were 5.6 million adult felons living in this country who either had been to prison or were still behind bars, according to Justice Department figures. But the number of felons is actually much higher because many felons are sentenced to probation and never do any time....

In interviews, several legal experts say that lower court judges should interpret the Supreme Court's decision in Heller to permit non-violent felons to own weapons. "Why not? I can't see why they shouldn't have gun rights if they don't have a record of violent crime," a lawyer who financed the Heller case, Robert Levy, said. "If the nature of their crime has nothing to do with the commission of violence than it's a pretty strange punishment that would deprive ex-felons of the ability to defend themselves."...

Among gun rights lawyers there is little enthusiasm for trying to arm felons, a cause that is unlikely to attract much popular support. "I don't sense any great interest in overturning the ban on felons-in-possession," a co-counsel to Mr. Levy who argued the Heller case before the Supreme Court, Alan Gura, said in an interview. "I don't see that as the next battleground."

Regardless, the issue will arise as defense lawyers challenge the Justice Department's routine prosecution of felons who are caught with guns.... The Justice Department is expected to vigorously defend its felon-in-possession law. Prosecutors like the law because it makes for some of the easiest criminal cases to prove: All that's needed is proof of a felony and proof of gun possession....

Justice Scalia, in writing for the majority in the Heller case, sought to foreclose these very kinds of challenges. The opinion suggests that only "law-abiding, responsible citizens" enjoy Second Amendment rights. "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," Justice Scalia wrote. Yet, in a dissent, Justice Stevens suggested that the majority wasn't being true to its own logic. "Even felons (and presumably irresponsible citizens as well)" can invoke the Bill of Rights, Justice Stevens wrote.

Some related posts (all of which, except the first, were written before Heller was handed down):

Comments

I am slogging through Scalia's opinion line by line. It seems to me an argument can be made from his opening where he talks about "keeping" arms and "bearing" arms that those are two different things.

"Thus, the most natural reading of 'keep Arms' in the Second Amendment is to 'have weapons.'"

On the other hand,
"At the time of the founding as now, to 'bear' meant to carry. When used with 'arms' however, the term has a meaning that refers to carrying for a particular purpose-confrontation."

So, if the right to keep and the right to bear involve different concerns I wonder if they would be viewed by different scrutiny? A state could easily punish someone who "carries' a handgun around town with a particular purpose of confrontation. But, a law which punishes someone for storing grandpa's muzzleloader in a box in the attic is looked at with a different eye.

Yes? No? Maybe?

Bruce Cunningham

Posted by: bruce cunningham | Jun 28, 2008 7:20:26 AM

Bruce,

I think you are on the right track. Isn't that just the sort of distinction that arose under the Guideline's enhancment for "using" a firearm in relation to a drug offense? In the early days of the Guidelines, any "possession" of a firearm by a drug defendant, even keeping grandpa's shotgun in the closet, was enough to get you a two-level increase. But the Court cut back on this practice and said, essentally, that "using" a firearm had to have some more direct relation to the crime. So, carrying a pistol in your waistband while attending a transaction did justify the enhancement, whereas keeping a rifle in the closet didn't. The same sort of logic might well apply in this context, as you suggest.

Posted by: anon | Jun 28, 2008 9:42:07 AM

I would like to propose a framework within which to analyze the constitutionality of a felon in possession statute following Heller. (let's leave aside the incorporation issue for now)

1. Is the type of gun a type that was in existence at the founding and commonly found in the home?

2. Did the defendant "keep" the gun rather than "bear' it?

3. Was the conduct inside the def's home rather than on the street?

4. was the underlying felony nonviolent

5. Is the punishment meted out to the def "severe", carrying lengthy prison sentence. (like possession of firearm triggered armed career crimial enhancement?

If the answer to all those questions is "Yes" then the statute is presumptively violative of the Second Amendment and the State has the burden, under a strict scrutiny test, to justify the legislation.

If the answer to one or more of the questions is "no' the statute is presumptively unconstitutional and the def has the burden of proving that the law fails the rational relationship test.?

"Potshots" are welcome

bruce cunningham

Posted by: bruce cunningham | Jun 28, 2008 12:33:15 PM

oops, "presumptively CONSTITUTIONAL"

Posted by: bruce cunningham | Jun 28, 2008 12:35:12 PM

Not quite, anon. I think you're thinking of the 18 USC 924(c) offense, which originally just applied to "use," but that Congress expanded to simply carrying after the _Bailey_ decision.

There is an enhancement in 2D1.1 of the Guidelines for possession of a dangerous weapon in connection with a drug offense, but once the Govt proves a gun exists, the burden shifts to the defendant to prove it is "clearly improbable" that the gun and drugs are connected.

Speaking from personal experience, in the Fourth Circuit the enhancement can apply when the guns involved are hunting rifles kept in locked gun cabinets at the defendant's home (where one undercover drug sale was made). I thinks in a case like that, _Heller_ may have some application.

From the article: "In interviews, several legal experts say that lower court judges should interpret the Supreme Court's decision in Heller to permit non-violent felons to own weapons. 'Why not? I can't see why they shouldn't have gun rights if they don't have a record of violent crime,' a lawyer who financed the Heller case, Robert Levy, said. 'If the nature of their crime has nothing to do with the commission of violence than it's a pretty strange punishment that would deprive ex-felons of the ability to defend themselves.'..."

One can (and should) go even further. Even persons who committed a violent felon should not be foreclosed from the valuable right to self defense. If a felon did not use a firearm in the commission of his violent crime, what rational justification can there be to deny him the right to defend himself from his fellow citizens with a firearm if wrongful use of a firearm had nothing to do with his prior violent act? (For my part, I don't think the government has the power to deprive any felon--once their sentence has been served--of fundamental constitutional rights like voting or (now) self defense, so I would go even further now that a right to self-defense has been recognized and invalidate all felon-in-possession laws.)

By, the way, does anybody else think this decision to be like Roe in its creation of a right (self-defense as between citizens) that has no direct textual basis in the constitution? I find it to be even more tenuous than Roe. I can actually discern a right to privacy in penumbras of the Bill of Rights; I can find no such right of self-defense there--even in the 2d. (The 2d Amendment is about protecting the political autonomy of the states from the threat of a standing federal army.) Nothing in the entire constitution and first ten amendments regulates relations between citizens--the 13th Amendment was the first such attempt to regulate private behavior through the constitution. It seems evident to me (and everybody else, I assume) that the right to defend oneself with a firearm against other citizens has been pulled entirely from thin air.

Also from the article: "Regardless, the issue will arise as defense lawyers challenge the Justice Department's routine prosecution of felons who are caught with guns.... The Justice Department is expected to vigorously defend its felon-in-possession law. Prosecutors like the law because it makes for some of the easiest criminal cases to prove: All that's needed is proof of a felony and proof of gun possession...."

It's such a shame the system is so rigged and that courts will not seriously entertain constitutional claims like this from criminal defendants. Scalia's dicta will be sufficient to shut them all down. And if one happens to get through, well, there's Scalia sitting on top to enforce his policy views. Witness: "The opinion suggests that only 'law-abiding, responsible citizens' enjoy Second Amendment rights." It's in the text!

New Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the [law-abiding, responsible] people to keep and bear Arms [against each other], shall not be infringed.

Posted by: DK | Jun 28, 2008 4:44:20 PM

Olson may be right, but I read his suggestion as fairly narrow and nuanced -- don't throw out felon-in-possession entirely, but require that there be an individual assessment of dangerousness, rather than continue a one-size-fits-all ban.

Also, the odds of a challenge succeeding probably depends to some extent on the procedural posture in which it is raised. A defendant in a §922(g) prosecution who raises the Second Amendment as a Constitutional defense to the charges is significantly less likely to get a sympathetic review than one who challenges an arbitrary and capricious denial of post-conviction rights restoration pursuant to §925(c) -- which is now unavailable because of the legislation that has blocked BATF from spending appropriated funds to act on rights restoration petitions. Especially if the petitioner in the latter context has a sympathetic story.

Why? Because the latter (especially if the plaintiff was never a violent felon, and whose disqualifying felony is ancient) is potentially a much more sympathetic vehicle. Judges are human and in my experience most people charged under §922(g) actually got caught doing far worse things, and have pretty ugly criminal histories. And procedurally a rights restoration petition is "only" a civil action, while a 922(g) defense would stop a criminal case cold and would inevitably attract a lot of public criticism.

This sort of careful case selection is not unlike the strategizing that reportedly went on before the Parker case (the lower court antecedent to Heller) was filed: Levy recognized that no f-i-p defendant who had raised a Second Amendment defense had ever prevailed on the merits, and thus found a much more sympathetic set of law-abiding plaintiffs.

Posted by: zippypinhead | Jun 28, 2008 7:27:14 PM

DK, I think you are missing the fundamental distinction between the Bill of Rights and the Magna Carta when it comes to creation of rights versus protection of rights. Our country is founded on the notion of inalienable rights which are not given to the people by the government, (as the rights inthe Magna carta were given to the lords by the King.) Rather, the people have all rights by virtue of being born and surrender some to the government. It is sort of like why Indian reservations were called "reservations." The Indians owned all the land, save what they gave up to the US government, admittedly involuntarily. Same way with rights. Read what Scalia says in Blakely about reserved rights

It would be helpful if you would do some reading about the Ninth Amendment. In my opinion, the Ninth amendment, which says that the list of rights secured by the Bill of Rights is not exclusive, is the best symbol of the genius and uniqueness of the Constitution. The right to self defense is an unenumerated right secured by the Ninth Amendment.

bruce cunningham

Posted by: bruce cunningham | Jun 28, 2008 11:40:44 PM

Bruce,

I do actually share your view and think it is undeniably correct. The problem is that is not how courts or our governments--institutions that naturally seek to expand their power--view it, so my comment is made in that context.

Posted by: DK | Jun 29, 2008 2:38:52 PM

If the state of conviction restores a felon the right to own a gun (and many do) then in my opinion he is also restored his second ammendment right. Federal law should recogize that even if the felon doesn't qualify under the exemption clause of 921 (a) (20). I think this situation would have the best chance of going before the Supreme Court and prevailing.

Posted by: Paul | Jun 30, 2008 11:14:21 AM

The opinion suggests that only 'law-abiding, responsible citizens' enjoy Second Amendment rights." It's in the text!

If a felon has done his time, maintains gainful employment and has not reoffended isn't he a law abiding citizen?

Posted by: Paul | Jun 30, 2008 11:38:33 AM

Good point Paul. I meet that criteria. Have maintained gainful employment have not re-offended. I have been a law abiding citizen since 1986. My crime marijuana charge in 1986. Looks like I am headed for a life time ban from firearms. I guess when the supreme court handed down their decision about being able to protect ones self in their home it did not include me. I wonder if the Supreme Court thinks that the bullets will magically not touch me if my home is broken into for the third time.

Posted by: felon with no 2A rights | Jun 30, 2008 3:55:40 PM

But Paul, on what basis can Scalia limit the 2nd amendment right to "responsible" or "law-abiding" persons? Certainly, no other fundamental right that can be denied to anyone simply because a judge deems them to be insufficiently "responsible" to exercise it.

Under Heller's framework, the only question should be: are prohibitions such as the felon in possession laws historical exceptions to the 2nd amendment recognized by the framers? I don't know the answer to this question, but it's notable that the historical analyses done by both the majority and dissents fail to cite any such law.

I want to join by saying that the U.S.Supreme Court in the Heller's case failed miserably in the interpretation of the Second Amendment.
The Justices just re-wrote the Amendmwnt to suit the political mood of the moment while recognizing what it was already known that the same Amendment gave the People the right to keep and Bear Arms without pre-conditions,qualifications and limitations.
Additionally, the Second Amendment,the way it is well written, is not subject to the Judicial Oversight by the States or the Federal Government.
If the writers of the Amendment wanted Congress or the States to regulatethe Amendment "by appropriate legislation" they would have added this notation just below the Amendment itself as we can see in other Articles of the Constitution and in the Amendments to the Constitution where these powers were granted to Congress or the States to regulate the Articles by "passing ppropriate legislation".
The key issue here is: having the right to pass laws to regulate an Act or Article.The Second Amendment gives no such powers to Congress or the States.
The Justices also failed to recognize and differentiate between the two Militias: the first one created under Article1,Section 8,which is our Military/National Guard established exclusively to repel invasion etc,etc and the other Militia created under Amendment 2 (Second Amendment) for the sole purpuse of the protection of the people within the States.
This Amendment,which provides for the right of the People to keep and Bear Arms, is not subject to Judicial or Statutory limitations.
The only crimes our founding fathers deemed dishonorable were: treason and harboring the enemy.
However,they placed no qualifications on who could possess firearms when they wrote the Second Amendment as they found self-defence and the defence of the State to be fundamental rights.
I feel ashamed of our Congress, our State legislatures and our Courts as they have usurped powers not granted to them by the U.S. Constitution and transformed our Republic into a Tyranny.
People with non-violent convictions should be able to possess firearms and never loose this right and all the other Civil Rights.
It comes down to not only basic Constitutional protected rights. It also extend to the consideration that 300 millions of Americans cannot be forcibly subjected to the volatile,mean-spirited whim of only 537 members of the U.S. Congress and the other few maniacs in the States House.
This fight must go on because there is a just cause.

Posted by: Allisio Rex | Sep 6, 2008 11:32:06 PM

I want to join by saying that the U.S.Supreme Court in the Heller's case failed miserably in the interpretation of the Second Amendment.
The Justices just re-wrote the Amendment to suit the political mood of the moment while recognizing what it was already known that the same Amendment gave the People the right to keep and Bear Arms without pre-conditions,qualifications and limitations.
Additionally, the Second Amendment,the way it is well written, is not subject to the Judicial Oversight by the States or the Federal Government.
If the writers of the Amendment wanted Congress or the States to regulatethe Amendment "by appropriate legislation" they would have added this notation just below the Amendment itself as we can see in other Articles of the Constitution and in the Amendments to the Constitution where these powers were granted to Congress or the States to regulate the Articles by "passing ppropriate legislation".
The key issue here is: having the right to pass laws to regulate an Act or Article.The Second Amendment gives no such powers to Congress or the States.
The Justices also failed to recognize and differentiate between the two Militias: the first one created under Article1,Section 8,which is our Military/National Guard established exclusively to repel invasion etc,etc and the other Militia created under Amendment 2 (Second Amendment) for the sole purpuse of the protection of the people within the States.
This Amendment,which provides for the right of the People to keep and Bear Arms, is not subject to Judicial or Statutory limitations.
The only crimes our founding fathers deemed dishonorable were: treason and harboring the enemy.
However,they placed no qualifications on who could possess firearms when they wrote the Second Amendment as they found self-defence and the defence of the State to be fundamental rights.
I feel ashamed of our Congress, our State legislatures and our Courts as they have usurped powers not granted to them by the U.S. Constitution and transformed our Republic into a Tyranny.
People with non-violent convictions should be able to possess firearms and never loose this right and all the other Civil Rights.
It comes down to not only basic Constitutional protected rights. It also extend to the consideration that 300 millions of Americans cannot be forcibly subjected to the volatile,mean-spirited whim of only 535 members of the U.S. Congress and the other few maniacs in the States House.
This fight must go on because there is a just cause.

Allisio Rex, Constitutional Activist.

Posted by: Allisio Rex | Sep 6, 2008 11:52:56 PM

Justice Scalia, in writing for the majority in the Heller case, sought to foreclose these very kinds of challenges. The opinion suggests that only "law-abiding, responsible citizens" enjoy Second Amendment rights. "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," Justice Scalia wrote. Yet, in a dissent, Justice Stevens suggested that the majority wasn't being true to its own logic. "Even felons (and presumably irresponsible citizens as well)" can invoke the Bill of Rights, Justice Stevens wrote.

I must remind you we are talking about matters of the law per you citing the clause of logic,

The other justice’s factors into their decision making process the clause of being politically correct

The truth would be nice, per 18 USC 922 g8 only women need protection per the order of Judge Nancy Pollard court of Orange Cal

Yours truly,

Larry W.Campbell
A for vote my Cert is a vote for the truth

Posted by: larry | Oct 11, 2008 8:39:41 PM

As I stated in another letter, the fact of a former felon not breaking the rules and nor going armed is prima facia evidence of his intent to be law abiding and so should afford him his Right to keep and bear arms.